High Court Of Justice Before MR. JUSTICE FINLAY His LORDSHIP gave judgment for the plaintiff for ?350 in the action in which Police-constable Thomas John Haynes, of the " M-" Division of the Metropolitan Police, claimed damages for per- sonal injuries sustained by him as a result of the alleged negligence of the servant or agent of the defendants, Messrs. G. Harwood and Son, of Rotherhithe New Road, S.E. On August 24, 1932, a two-horse van was left unattended for a few minutes by the defendants' servant or agent in Paradise Street, Rotherhithe. The horses bolted, and were proceeding at a furious pace along the street, in which there were numerous children and other persons, when the plaintiff, who was on duty at the police station in the street, rushed out, pushed a woman aside to safety, and stopped the horses. In doing so he sustained injuries, and his case was that his [act was performed in the execution of his duty to protect life and property. The defendants denied negligence, and, alter- natively, contended that, if they were guilty of negligence, the plaintiff, in attempting to stop the horses, was guilty of contributory negligence. They further relied on the doctrines of volenti non fit injuria and common employment. It was agreed that if the defence failed damages should be assessed at ?350. Mr. Malcolm Hilbery, K.C., and Mr. N. R. Fox-Andrews appeared for the plaintiff; Mr. Rowland Thomas, K.C., and Mr. Gilbert J. Paull for the defendants. Mr. ROWLAND THONMAS, in concluding his argu- ment, referred to Pollock on Torts, 12th edition 167, Salmond on Torts, 6th edition 59, and Smith v. Baker ([18911 A.C. 325) on the question of volenti nonz fit injuria; and to Heasmer v. Pick- ford's, Limited (36 The Times L.R., 818) on the question of common employment. Mr. HILBERY, for the plaintiff, submitted that there had been a breach of duty on the part of the defendants and that what happened to the plaintiff was directly traceable to that breach. There was a duty on the part of owners of vehicles on the highway to take reasonable care. to avoid injury to persons on the highway, and the bolting of horses left unattended was prima facie evidence of negligence. He referred to Hambrook v. Stokes Bros. (41 Tle Times L.R., 125; [1925] 1 K.B.. 141), Gayler and Pope, Limited v. Davies (B.) and Son, Limited (40 The Times L.R., 591; -[19241 2 K.B., 75), Lynch v. Nurdin (1 Q.B., 29), Cooke v. Midland Great Western Railway of Ireland (25 The Times L.R., 375; [1909] A.C., 229). The defendants, he said, had not discharged the onus of showing that the bolting of the unattended horses was without negligence on their part. On the question of volenti non fit injuria, the effect of the authorities was that knowledge of the risk, and the undertaking of it with know- ledge, was not the same as willingly undertaking it. To render a person volens there must be something tantamount to an intention to undergo the risk. An action under the stimulus of a sense of duty was not sufficient to amount to a willing undertaking of the risk, a fortiori in the case of a person belonging to a body enrolled for a public service. With regard to Cutler v. United Dairies (London), Limited ([1933] 2 K.B., 297), he submitted that the facts were distinguishable from those of the present case. In that case there was no rescue or emergency or any circumstances creating a duty to act. On the contrary, there was time and opportunity there for deliberation. JUDGMENT MR. JUSTICE FINLAY, in giving judgment, said that the action was an interesting and rather important one. The matters which had to be considered presented some difficulty. The first was whether the defendants' servant was guilty of negligence, and the second whether the plaintiff, if there had been some negligence on the part of the defendants' servant, was prevented from recovering by reason of the application of the doctrine volenti non fit injuria. On the first point there had been a good deal of dispute on matters of detail, but not much on the broad facts. The law with regard to the matter had been laid down in Cooke v. Midland Great Western Company of Ireland (sa pra), and it appeared to be clear that, wherever a horse and cart were left unattended in a street and the horse ran away, those facts raised a presump- tion of negligence. The presumption was not conclusive and might be rebutted, but the onus was cast on the defendants of showing that what fiad happened had happened without negligence. On the evidence given, the defendants in the present action had failed to discharge that onus. The real question was whether, the defendants having been (as he found) guilty of negligenice- though that negligence was not very gross or culpable-the plaintiff was prevented, from recovering by reason of the doctrine volenti non fit injuria. It had been suggested. that ihe plaintiff had been guilty of contributory negligence, but little argument had been addressed to that point, and he (his Lordship) was quite unable to see that there had been any negligence on the part of the plaintiff. It had also been pleaded that the plaintiff had become the servant of the defendants and that the doctrine of common employment applied, but there were no facts such as would be necessary to lay the foundation for that doctrine in the present case. On the main point it was neither necessary nor useful to review the long series of cases in which the doctrine of volenti nont fit injuiria had been explained. Reference might usefully be made to the well-known case of Smith v. Baker (supra), where it had been emphasized that the maxim contained the word " volenti " and not " scienti." What the defendants contended was that the. plaintiff had by his own voluntary act brought the risk on himself, and that, as he had chosen to take the risk, what happened was due to his own act and not to any antecedent negli- gence on the part of the defendants. In Wilkinson v. Kinnell Cannel Coking Coal Company (34 Sc. L.R., 533) Lord Young had defined the duty to act which might exist in a case such as the present and had said that the duty might be not only a duty of legal obliga- tion but also what might be considered the moral duty 'to preserve life and limb. The general principle was that if a person was guilty of negligence he was responsible for all the natural consequences of such negligence. It had to be considered, therefore, whether the plaintiffs act was a natural consequence of the defendants' negligence. He (his Lordship) was of opinion that if a horse ran away it must be quite obvious that people were likely to be knocked down and that persons would attempt to stop the horse and prevent injury to life and limb. One must have regard not only to the victim but also to the rescuer. In Brandon v. Osborne Garrett and Co., Limited (40 The Times L.R., 235; [19241 1 K.B., 548), owing to negligence on the part of the defendants glass fell down into a shop and the plaintiff, a woman, sprang forward to help her husband. and in doing so injured herself. Mr. Justice Swift, after hearing full argument, held that she was entitled to recover. He said ([1924] 1 K.B., at 555):- Where a person sustains injury through a combination of acts, some done by the defendants and some by him- self, it is for the iury to say. having regard to the whole of the circumstances, whether (I) the injury is the natural and probable consequence of the defendants- act and (2) whether the plaintiff has been guilty of contributory negligence. In the present case he - (Mr. Justice Finlay) thought both those questions must be answered in favour of the plaintiff. "CONSIDERABLE DIFFICULTY" Undoubtedly considerable difficulty was offered by the decision of the Court of Appeal in Cutler v. United Dairies (London), Limited (supra). If he thought that that case covered the facts of the present case he would without hesitation follow it, but he was of opinion that when examined it did not. In that case a horse had run away, but had come to rest in a field, and, though the man in charge apparently was agitated, nobody was in any danger. The plaintiff, in response to a cry for help, jumped over a hedge, went into the field, endeavoured to hold the horse, and got injured in so doing. It was held by the Court of Appeal that in these circumstances a verdict in favour of the plaintiff ought not io stand. Lord Justice Slesser, however, in his judgment, appeared clearly to take the view that in the case of a man who saw his child in great peril in the street and dashed out and held the head of a runaway horse to save his child and was so injured, there would be no novas actus inter- veniens, on the ground that the man would be acting in pursuahce of a duty which ought to be anticipated. Lord Justice Scrutton, however, had said at p. 303:- A horse bolts along a highway and a spectator runs out to stop it and is injured. Is the owner of the horse under any legal liability in those circumstances ? On those facts it seems to me that he is not. . . . A man Is under no duty to run out and stop another Person's horse; and. if he chooses to do an act the ordinary consequence of which is that damage may ensue, the damage must be on his own head and not on that of the owner of the horse. He (Mr. Justice Finlay) was of opinion that that passage in the judgment of Lord Justice Scrutton had reference only to the facts with which he was then dealing. In that case there was no duty to intervene, no danger to life to be apprehended, and the facts were remote from those of the present case, where there was a crowded street and a woman in actual danger. It was to be observed that Lord Justice Scrutton expressly stated that in the case he was dealing with there was no duty to undertake the risk. The position in the present case was that the plaintiff was a police officer, and some weight was to be attached to that fact. Had he been on point duty,. it was reasonably clear that his plain duty would have been to regulate traffic and to stop a runaway horse if he could. In the present case his duty was perhaps less clear by reason of the fact that at the crucial time he was in a room looking out on to the road. However, he owed a general duty to the public to preserve life and property, and in all the cir- cumstances, when he stopped the horse he was acting in pursuance of that higher duty. In so doing, he did incidentally incur a risk. He had done a very brave thing for which he had very deservedly been rewarded, and when he did that brave thing he was acting in pursuance of a public duty. He (Mr. Justice Finlay) therefore came to the conclusion that Cutler v. United Dairies (London), Limited (supra), was to be distin- guished from the present case, and that on the facts of the present case the doctrine of volenti non fit in juria did not apply, and that there was no novus actus intervenieizs. For those reasons he was of opinion that the plaintiff was entitled to judgment for the sum agreed. Solicitors.-Messrs. Ponsford and Devenish; Messrs. William Hurd and Son. *p The judgment will be reported fully in 2'The Times Law Reports. HIGH COURT OF JUSTICE KING'S BENCH DIVISION RUNAWAY HORSES STOPPED BY POLICE [ OFFICER: PERSONAL INJURY CLAIM HAYNES v. G. HARWOOD AND SON